Proposition 8 and the Right to Marry

Thursday, October 28, 2010

In May, I decided that I would need a hiatus to prepare an article on a subject unrelated to this site. I have just completed my forthcoming article for law librarians, "Ending Our Conflicts of Interest to Protect Consumers of Legal Publication." (Attorneys represent the largest share of consumers who need protection. I advance my arguments on their behalf, even if I can only wish that the arguments would engage them also.)

I can no longer commit the time required to maintain this site, although I will leave it intact for future use. The pace of legal news and commentary exceeds the capacity of even the most conscientious blogger to widely cover developments and maintain research resources. I had sought to fill a unique niche in the blogosphere, with support from my collaborator, attorney Rick Xiao, and others. I now realize that even with their generous assistance, I overreached. I have also been unable to engage enough law students and attorneys as volunteers. However, I do not count my experiment a failure. Among my joys of discovery, I have had the joy of sharing insights from such perceptive, lively writers as John Culhane, Arthur Leonard, and Nan Hunter. And I have had the privilege of learning from your comments.

To Rick Xiao, John Culhane, and other supporters, I owe more gratitude than a hearty, and heartfelt, "Thank you!" can express for your contributions and encouragement.

Saturday, May 22, 2010

I regret that, for at least several weeks, I will lack time to update this site on a regular basis. I face two challenges. First, I expect to publish an article on a subject I have been thinking about for 20 years. (I can't say more about the article than that it concerns the professional shortcomings of law librarians - and that it takes inordinate time to prepare.) Second, site collaborator Rick Xiao and I are trying to decide on the appropriate scope of the enterprise that maintaining this site represents, as I lack enough time to achieve ambitious goals identified here and here. I am, of course, grateful to Rick; to a kind supporter, Kathleen Perrin; and to a wonderful contributor, law professor John Culhane. I am also grateful to everyone who has commented on posts.

Saturday, May 15, 2010

On May 13th, "the Minnesota Senate overwhelmingly passed a bill amending the state’s end of life statutes to add domestic partners to the list of individuals who may purse a wrongful death claim and who may make decisions about the disposition of remains."(HRC Back Story) Governor Tim Pawlenty has said that he would veto the legislation. (TwinCities.com) Project 515 has advocated for the legislation. The group takes its name from the number of state laws that discriminate against same-sex couples and their families.

Religious liberty exemption

May marriage commissioners in Canada's province of Saskatchewan claim a religious liberty exemption from performing marriage ceremonies for same-sex couples? The Court of Appeal heard oral arguments this week on the constitutionality of legislation that would confer this exemption, either for all marriage commissioners, or for just those who were commissioners in 2004 (or rather 2005?), when the country's marriage-equality was adopted. (Religion Clause / Regina Leader-Post / CBC News) Law professor John Culhane is among many who object to letting public officials use their offices to carve out exceptions to marriage equality. Culhane has recommended one means of accommodating American marriage license officials who say it violates their religious faith to issue marriage licenses to same-sex couples. (Prop. 8 and the Right to Marry)

The Court's heard a suggestion of a different form of accommodation, suited to the circumstances of the province's marriage commissioners, who perform marriage ceremonies. It involves a "system where couples would submit a form requesting a marriage commissioner and one would be sent to perform their ceremony ... Egale Canada, which advocates for gays and lesbians, said same-sex couples wouldn't face rejection in such a system and marriage commissioners could also be accommodated." (CanadaEast.com) Apparently the proposal would not apply to all couples seeking to marry. If limited to same-sex couples, doesn't the separate method still give state sanction to an administrative quarantine for these couples, and to associated stigma? "Nathan Seckinger of the GBLUR Centre for Sexuality and Gender Diversity [said that] 'in the end, it doesn't address the deeper concern for us, which is why these people want the right to discriminate against us in the first place.'" (Vancouver Sun)

"A lesbian couple married in Des Moines last year has filed a lawsuit against two state health department officials, after the department refused to name both women on their daughter’s birth certificate. Heather Lynn Martin Gartner, 38, and Melissa McCoy Gartner, 39, filed the Polk County claim on behalf of their second child, who was born in September ... The Iowa Department of Public Health rejected the couple’s request in March, according to the lawsuit filed in Polk County District Court, on grounds that Melissa had not legally adopted Mackenzie and was not biologically related." (Des Moines Register) "Camilla B. Taylor, an attorney with Lambda Legal ... who was one of three attorneys to file the lawsuit on behalf of the Gartners and their daughter. [She said,] 'I think this is just an error that will be cleared up shortly. Every other state that has allowed same-sex couples to marry or enter into civil unions has applied the spousal presumption of parentage equally to the children of same-sex couples. So, to my knowledge, this has never happened before'... 'Varnum makes it clear that children of same-sex couples are entitled to birth certificates naming both spouses as their parents — just as children of different-sex couples are entitled to those birth certificates,' Taylor said in reference to the landmark Iowa Supreme Court decision from April 2009." (Iowa Independent. See also LifeSiteNews.com for press statements by a Department of Public Health official.)

Divorce - Rhode Island

On May 4th, the Rhode Island House Judiciary Committee heard testimony on HB 7990, which would allow the state to divorce same-sex couples, even though it bars them from marrying. (The Provost Journal)

Divorce

On May 5th, CNN.com reported on the legal obstacles same-sex couples may face if they seek divorce in a state that does not recognize marriage equality.

The New York Times reports on the horrors the aging plaintiff in this case suffered when a California county agency separated him from his partner following his partner's injury from an accident.

Marriage of transgender partner - Texas

"Texas Attorney General Greg Abbott has been asked to weigh-in on whether or not a marriage license can be issued to a couple when one of the partners is transgendered." (Texas Capitol Annex) The El Paso Times links to a request for the opinion by El Paso County Jo Anne Bernal. The Dallas Voice also reports on the request.

Immigration

"The Advocate reports on an immigration reform proposal that is being circulated by the Democratic leadership in Congress. Under the proposal, which could form the basis of an immigration reform bill, U.S. citizens and legal residents would be allowed to sponsor their same-sex partners for residency, ending long-standing discrimination against same-sex couples." (Marriage Equality New York)

super-DOMA - North Carolina

"Sen. Jim Forrester, R-Gaston, has filed a bill [SB 1156] to change the N.C. Constitution to ban same-sex marriages. The bill would provide for a referendum to ratify the constitutional amendment should lawmakers approve it. The bill would recognize 'marriage between a man and a woman' as the only domestic legal union in North Carolina." (05/15/10 TheTimesNews.com)

Developments abroad - Argentinaand England

Earlier this month, "Argentina’s lower house passed a marriage equality bill, paving the way for the nation to become the first in Latin America to legalize marriage for same-sex couples ... If the bill passes in the Senate, Argentina would become the first nation in Latin America and would join Canada as the second nation in the Americas to legalize marriage." (05/06/10 GLAADBlog.com)

A gay couple in England is suing the owner of a bed-and-breakfast inn for refusing service on the basis of their sexual orientation. (Mail Online)

Wednesday, May 12, 2010

On May 7th, three same-sex couples in Minnesota - and a couple's baby - filed a lawsuit in to invalidate the state DOMA. (Minn. §§ 517.01 & 517.03, subd. 1(a)(4), as amended by Act of June 2, 1997, No. 203, Art. 10, §§ 2-3) They also seek an injunction requiring the Hennepin County registrar to issue marriage licenses to otherwise qualified, same-sex couple applicants, including the plaintiffs. They allege state constitutional violations of due process, equal protection, freedom of conscience, freedom of association, and the single-subject rule for statutory enactment.

Monday, May 10, 2010

Garden State Equality and five other organizations have filed an amicus brief in Lewis v. Harris II to document the nature and extent of harm children suffer because their same-sex parents cannot marry. They also maintain that "no legitimate state purpose" for continued marriage inequality under New Jersey's civil union law can justify such pervasive and profound harm to children. (Garden State Equality press release / Advocate.com)

Religious liberty exemption - Canada

On May 13th, "the Saskatchewan Court of Appeal in Regina will consider whether marriage commissioners are within their Charter rights to refuse to conduct ceremonies that offend their religious beliefs. While some other provinces have allowed for exemptions since same-sex marriage became legal, this will be the first time that a court will evaluate if that refusal meets the standards of the Canadian Charter of Rights and Freedoms, so it could have ramifications for the rest of the country." (National Post / cross-posted by ADF Alliance Alert)

Perry v. Schwarzenneger

Equality Forum gave law professor John Culhane five minutes for an interview last week with David Boies, one of the attorneys representing the Perry plaintiffs. Boies told Culhane that he expects to "win under rational basis." That is, he expects the U.S. Supreme Court to rule that no legitimate state interest provides a reason for same-sex marriage bans. In Boies' view, the Court can find no legitimate state interest for bans that significantly harm same-sex couples and their children, when lifting them would not in any way harm married, opposite-sex couples and their children. (365Gay.com) LGBT advocacy groups, if allowed to intervene, would have limited the "rational basis" test to the unique circumstances of Prop. 8's adoption - increasing odds that the 9th Circuit could issue a narrow ruling on just Prop. 8. (Prop. 8 and the Right to Marry)

Gill v. OPM

"According to two sources who covered the argument in Gill v. OPM, GLAD's challenge to Section 3 of DoMA (the section barring federal government recognition of same-sex marriages), Judge Joseph Tauro seemed from his questions to be applying a rational basis standard for evaluating DoMA's constitutionality." (hunter of justice)

Out-of-state recognition / adoption

[T]he federal government doesn't recognize same-sex marriage, nor do the vast majority of states, including Pennsylvania. Even with a valid out-of-state marriage license, gay and lesbian couples in those states face uncertainty, extra legal bills and inevitable rebuffs that straight couples avoid ... For some couples, among the most galling problems is trying ensure that both are legally recognized as parents of their children. Many states allow second-parent adoption for same-sex couples, which addresses this situation, but many other states do not." (The Daily Transcript)

(Thanks to Kathleen Perrin for alerting me to these filings and posting the links.)

Parties in Perry v. Schwarzenneger continue to dispute the scope of First Amendment protection from compelled disclosure of private communications to develop campaign strategy and messaging. The latest version of the dispute concerns whether Prop. 8 proponents, and their recalcitrant witness, Dr. Hak Shing "William" Tam, can now claim a First Amendment privilege as reason to strike from the trial record campaign communications by Tam and other Prop. 8 supporters, and testimony about the communications.

Here's the context. In December, a 9th Circuit panel ruled that Prop. 8 proponents - the "defendant-intervenors" in the case - are entitled to a limited First Amendment privilege for internal campaign communications. "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) In that case, Prop. 8 proponents appealed discovery orders requiring them to give plaintiffs internal campaign communications between proponents and any third parties, including political consultants. Judge Walker had limited the privilege to just the "the identities of rank-and-file volunteers and similarly situated individuals." Proponents appealed the orders, claiming a First Amendment privilege for all of their confidential communications with third parties. They argued that participants in initiative campaigns would otherwise experience a "chilling effect" on their political speech and association if they know that their campaign communications may be discoverable in lawsuits. A 9th Circuit panel limited the First Amendment privilege to "private, internal ... communications among the core group of persons engaged in the formulation of campaign strategy and messages."

To comply with this ruling, Magistrate Judge Joseph Spero applied proponents' First Amendment privilege to "an extremely broad core group that listed 25 individuals and their assistants, employees from ten consulting firms, and any and all 'volunteers who had significant roles in formulating strategy and messaging.'" (Plaintiffs' opposition, at 4) Proponents did not present evidence that Dr. Tam, or other agents of obvious anti-gay bigotry, belonged to the core group of persons eligible for the privilege. In fact, they abdicated any ties to Dr. Tam and other Prop. 8 supporters whose hostile, anti-gay messages could support plaintiffs' claim that proponents used or abetted prejudice to influence Californians to vote for Prop. 8.

After the trial, No-on-8 nonparties appealed discovery orders compelling them to give Prop. 8 proponents their internal campaign communications with Equality For All coalition partners. The same 9th Circuit panel denied review of the appeal, but clarified its earlier holding: a core group of persons subject to the First Amendment privilege can include persons who belong to more than one organization. Perry II, Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (hunter of justice)

The No-on-8 groups, facing the risk of a contempt citation, decided to turn over the campaign communications they had been ordered to provide proponents. But Dr. Tam and proponents recently filed motions to exclude from the trial record campaign communications, and related testimony, that they had not, until now, objected to as privileged under the First Amendment. The communications reveal the nature of the relationship between the proponents and Prop. 8 allies who perpetrated the most hateful messages about gays. Proponents and Dr. Tam do not want Walker to consider evidence about the ways in which proponents and anti-gay groups worked together.

Proponents and Dr. Tam now argue that Judge Walker must reconsider the discovery orders by Spero and him that required them to produce the communications. They claim that, in light of Perry I and Perry II, these orders have "clear errors." Walker and Spero allegedly mistook the Perry I holding to mean that the First Amendment protects communications internal to just one organization - ProtectMarrige.com / Yes on 8, and not also private communications between ProtectMarriage.com and members of allied organizations. But the 9th Circuit rulings, they say, extend the First Amendment privilege "to those persons who come together 'to advance one's shared political beliefs,' including "myraid social, economic, religious and political organizations." Perry I, 591 F.3d at 1158, 1162 (Defendant-intervenors' motion for leave to strike, at 2, and motion to strike)

Prop. 8 proponents have already appealed Perry I to the U.S. Supreme Court, alleging that it unconstitutionally limits First Amendment privilege to a "core group" of persons who developed campaign strategy and messaging. (hunter of justice) Law professor Nan Hunter has faulted the Supreme Court petition as "weak." Petitioners asked the Court to place the petition on hold pending its decision in Doe v. Reed. But now Prop. 8 proponents appear to present the argument that the privilege holding in Perry I - as clarified by Perry II - has a much broader scope than what they represent in the Supreme Court petition. They understand the holding to effectively eviscerate the idea of a core campaign group as a subject of First Amendment privilege. They now claim, in their motion to strike, that the First Amendment protects from discovery "communications regarding the exchange of ideas and/or formulation of messaging and strategy among persons who associate during the Proposition 8 campaign for the common purpose of that measure" (Defendant-intervenors' motion for leave to strike and motion to strike, at 9)

Plaintiffs and plaintiff-intervenors argue that Walker and Spero did not err in their January orders compelling proponents to produce the now contested campaign communications. Even if they did err, their error was far from clear, because proponents never furnished evidence that these communications were private communications among a core group of persons - persons with decision-making authority to develop campaign strategy and messaging. "[E]ven though (as proponents now finally and belatedly admit but had previously denied) ProtectMarriage.com is linked to the messages disseminated by other groups, including messages designed to promote stereotypes about, and prejudice against, gay and lesbian individuals, and even though the evidence shows ProtectMarriage.com sometimes knew of, encouraged or acquiesced in, and even funded the distribution of such messages, these facts are not enough to establish that its communication with these groups fall within the [First Amendment] privilege exception to disclosure." (Plaintiff-intervenors' opposition, at 10)

I could have titled this update, "Round Up The Usual Suspects," because that is what defendant Sally Howe Smith has done in a lawsuit challenging sections 2 and 3 of the federal DOMA. Howe is the Tulsa County Clerk who denied a marriage license to plaintiffs Mary Bishop and Sharon Baldwin, on the grounds that Oklahoma's constitution prohibits same-sex marriages. Howe's counsel has been David Iski, Assistant Tulsa County District Attorney. In March, Iski asked the Court to admit, as out-of-state, co-counsel, four attorneys of the Alliance Defense Fund. On April 1st, the Court granted his request. The ADF attorneys are Brian Raum, Dale Schowengerdt, Jim Campbell, and Austin Nimocks. See also the March 30th press release by the Cimarron Alliance Foundation.